The 2020 Election in Maryland: It’s Not About Politics

During Autumn of 2020, Maryland’s new elective share law will take effect. “No longer limited to a fractional share of the net probate estate, a surviving spouse who decides to reject what was given to him under the decedent’s existing estate plan will then receive his elective share out of the deceased spouse’s augmented estate.”

Maryland’s existing share law is based on a statute that was originally enacted in 1798. That statute states:

“Instead of property left to the surviving spouse by will, the surviving spouse may elect to take: (1) A one-third share of the net estate if there is also a surviving issue; or (2) A one-half share of the net estate if there is no surviving issue.”

Any rights the spouse has in non-probate assets will be unaffected by the spouse’s exercise of her elective share rights. The fact that non-probate assets and other inter vivos transfers will not be affected by the election is an important upside. 

Under the new law, “a surviving spouse who exercises his right of election will receive a share of the deceased spouse’s estate from a mix of assets that includes probate assets, property outside of the probate estate, and certain other lifetime and testamentary transfers.”

“The new law establishes the following ordering rule for the satisfaction of the elective share, to determine the priority of payment from assets included in the estate and which are not part of the spousal benefits: (i) from the probate estate; (ii) from the revocable trust; (iii) if the decedent had more than one revocable trust, by apportionment among the trusts in proportion to the value of each revocable trust; and (iv) by the recipients of any other portions of the estate, prorated among the recipients in proportion to the value of the assets received by each recipient. The decedent’s will or trust instrument may override the ordering rule, or the parties who pay the elective share may enter into an agreement subject to court approval for payment of the elective share.”

See Linda Kotis, Andrea Dykes, & Carolyn Rogers, The 2020 Election in Maryland: It’s Not About Politics, American Bar Association: Probate & Property, July/August 2020.